Haryana

StateCommission

CC/180/2015

SHUBHAM BANSAL - Complainant(s)

Versus

KAPIL EYE HOSPITAL - Opp.Party(s)

AJAY NARA

20 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :   180 of 2015

Date of Institution:  08.10.2015

Date of Decision :   20.07.2017

Shubham Bansal son of Sh. Mahabir Bansal age 20 years, resident of 2283, Sector 15, Panchkula.

                                      Complainant

Versus

1.      Kapil Eye Hospital, 240, Vivek Vihar, Opposite PWD Rest House, Civil Lines, Ambala City through its Proprietor Dr. Kapil Vohra.

2.      Dr. Kapil Vohra, Proprietor of Kapil Eye Hospital, 240, Vivek Vihar, Opposite PWD Rest House, Civil Lines, Ambala City.

3.      Apex Insurance Consultant Limited, Registered Office : 54, Vinoba Puri, Lajpat Nagar-II, New Delhi-110024.

4.      United India Insurance Company Limited, 42-C, 3^rd Floor, Moolchand Commercial Complex, New Delhi-110024.

5.      New India Assurance Company Limited, 5406, Shree Complex, 2^nd Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt-133001.

                                      Opposite Parties

 

 

 

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Ajay Nara, Advocate for complainant.

                             Shri Tarun Mehta, Advocate for the opposite parties No.1 & 2

                             Dr. Kapil Vohra in person

                             Ms. Shweta Kaushik, Advocate for the opposite party No.3

                             Shri Satpal Dhamija, Advocate for the opposite party No.4

                             Shri Vinod Chaudhari, Advocate for the opposite party No.5

 

                                                   O R D E R

 

 

 

 

NAWAB SINGH J. (ORAL)

 

          Shubham Bansal-complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 alleging that in the year 2013, he used to wear spectacles because of his poor eye sight. He wanted to join Merchant Navy where a person wearing spectacles was not eligible. So, he decided to go for Lasik Laser. He contacted Dr. Kapil Vohra of Kapil Eye Hospital, Ambala-opposite parties No.1 and 2 for Lasik Laser. On September 25^th, 2013, after conducting preliminary investigation, femtosecond assisted lasik laser procedure was conducted.  He paid Rs.68,000/- to Dr. Kapil Vohra.  The eye sight of the complainant did not improve rather it started deteriorating and he could not join the Merchant Navy. The complainant sought refund of Rs.2,50,000/- spent by him on his treatment, medicines, tests etc; Rs.75,000/- paid to the Great Eastern Shipping Company Limited for studies and Rs.80,00,000/- for not  getting job and loss of prospects of marriage.

2.      The opposite parties No.1 and 2 (Dr. Kapil Vohra and Kapil Eye Hospital), in their, written version, submitted that the lasik laser procedure was conducted as per the norms.  He was not negligent in treating the complainant. The complainant and his father lodged complaint of medical negligence against him before the Chief Minister, Haryana and National Human Rights Commission, New Delhi.  An inquiry was conducted by a team of medical officers and found that there was no medical negligence on his part.

3.      Apex Insurance Consultant Limited-opposite party No.3, in its, written version, pleaded that there was no medical negligence on the part of Dr. Kapil Vohra. 

4.      United India Insurance Company Limited and New India Assurance Company Limited-opposite parties No.4 and 5, in their written version, alleged that Kapil Eye Hospital and Dr. Kapil Vohra were duly insured with them.  There was no medical negligence on the part of Dr. Kapil Vohra.  So, question of paying the compensation to the complainant does not arise.

5.      In evidence, Shubham Bansal-complainant appeared as CW1 and tendered the following documents:-

1.	Copy of receipt dated 25.09.2013 of Rs.68,000/-issued by Ujjawal Healthcare Private Ltd.	Exhibit C1
2.	Copy of the demand draft paid to the Great Eastern Shipping Company Limited dated 19.08.2014 amounting to Rs.210000/-	Exhibit C2
3.	Copy of Prescription Slip dated 16.01.2015	Exhibit C3
4.	Copy of receipt dated January 13th, 2015 issued by Grewal Eye Institute of Rs.600/-.	Exhibit C4
5.	Copy of receipt issued by Grewal Eye Institute of Rs.500/-	Exhibit C5
6.	Copy of Prescription Slip dated 17.02.2015	Exhibit C6
7.	Copy of Card of Patient dated 16.02.2016	Exhibit C7

 

6.      On behalf of opposite parties No.1 and 2, Dr. Kapil Vohra appeared as OPW1 and tendered the following documents:-

1	Copy of degree of MBBS	Exhibit OP2
2	Copy of degree of Master of Surgery	Exhibit OP3
3	Copy of Medical Registration	Exhibit OP4
4	Copy of topography & tomography of Right Eye dated 24.09.2013	Exhibit OP5
5	Copy of topography and tomography of Left eye dated 24.09.2013	Exhibit OP6
6	Copy of Operation Theatre (OT) record and consent	Exhibit OP7
7	Copy of Lasik Work-up Sheet dated 25.09.2013	Exhibit OP8
8	Copy of Lasik Post-OP-Sheet dated 22.01.2014	Exhibit OP9
9	Copy of Lasik Post-OP-Sheet dated 09.07.2014	Exhibit OP10
10	Copy of topography & tomography of Right Eye dated 15.01.2015	Exhibit OP11
11	Copy of topography & tomography of Left Eye dated 15.01.2015	Exhibit OP12
12	Copy of topography & tomography of Right Eye dated 16.02.2015 conducted by Dr. Amrish Darak	Exhibit OP13
13	Copy of topography & tomography of Left Eye dated 16.02.2015 conducted by Dr. Amrish Darak	Exhibit OP14
14	Case Summary issued by Dr. Ambarish B. Darak	Exhibit OP15
15	Copy of topography & tomography of Right Eye dated 12.03.2015	Exhibit OP16
16.	Copy of topography & tomography of Left Eye dated 12.03.2015	Exhibit OP17
17.	Copy of topography & tomography of Right Eye dated 20.03.2015	Exhibit OP18
18.	Copy of topography & tomography of Left Eye dated 20.03.2015	Exhibit OP19
19	Complaint by father of complainant to Chief Minister of Haryana	Exhibit OP20
20	Copy of Enquiry Committee’s Report dated 09.06.2015	Exhibit OP21
21	Copy of letter regarding confirming of enquiry committee’s report by Principal Medical Officer, Civil Hospital Ambala City	Exhibit OP22
22	Copy of Insurance Policy of Apex Insurance Consultant Limited of M/s Kapil Eye Hospital	Exhibit OP23
23	Copy of Insurance Policy of Apex Insurance Consultant Limited of M/s Kapil Eye Hospital	Exhibit OP24
24	Copy of Insurance Policy of United India Insurance Company Limited of M/s Kapil Eye Hospital	Exhibit OP25
26	Copy of Insurance Policy of United India Insurance Company Limited of M/s Kapil Eye Hospital	Exhibit OP26
27	Copy of Insurance Policy of The New India Assurance Company Limited of Dr. Kapil Vohra	Exhibit OP27
28	Copy of Insurance Policy of The New India Assurance Company Limited of Dr. Kapil Vohra	Exhibit OP28
29.	Copy of letter written by Superintendent of Police Ambala to Human Rights Commission	Exhibit OP29

 

7.      After hearing learned counsel for the parties and perusing the record, the pivotal issue in this case is as to whether there was any kind of medical negligence on the part of Dr. Kapil Vohra or not?

8.      Mahabir Bansal, father of the complainant filed complaint against Dr. Kapil Vohra to the Deputy Commissioner, Ambala, Chief Minister, Haryana (Exhibit OP-20).  An inquiry was conducted by Dr. Sunanda Jindal, Senior Medical Officer and Dr. Rajesh Gupta, Medical Officer, Civil Hospital, Ambala City.  They opined that there was no medical negligence on the part of Dr. Kapil Vohra in conducting lasik laser procedure and in management of post lasik ectasia vide Exhibit OP-21.  Chief Medical Officer after going through the report (Exhibit OP-21) submitted by the Committee endorsed the opinion of the medical officers and recommended to file the complaint vide Exhibit OP-22.  Mahabir Bansal also filed complaint before the Hon’ble National Human Rights Commission, New Delhi.  The National Commission vide order dated August 14^th, 2015 stated that Action Taken Report in the matter be called for within 4 weeks from the date of receipt of the letter.   As is gleaned from the letter written by Deputy Director (PM), For Director General Health Services, Haryana, the matter was also looked after by the Superintendent of Police, Ambala and in his report (Exhibit OP-29) dated April 23^rd, 2016, it was stated that the matter was already investigated by the Inquiry Committee of the Medical Officers and it was found that there was no negligence on the part of Dr. Kapil Vohra.  The complainant while appearing as CW1 has admitted that on his complaint, an inquiry was conducted and a board of Medical Officers was constituted.  The Medical Board opined that there was no medical negligence on the part of Dr. Kapil Vohra.  It was also stated by him that the complaint moved by him before National Human Rights Commission, New Delhi was also filed.

9.      Dr. Kapil Vohra while appearing into the witness box as OPW-1 has stated that on July 09^th, 2014, that is, after about 10 months of lasik laser procedure, complainant came to his hospital and informed that he was having problem of decreased vision, headache, dryness and scattering of light.  He examined the complainant and found his unaided vision 6/9 of both eyes and corrected vision 6/6.  After examining, it was found that lasik laser procedure was conducted rightly and that is why the vision of complainant was 6/6, that is, 100% normal.  It was further stated that on January 15^th, 2015 complainant came to his hospital for examination.  Central Corneal Thickness (CCT) was found to be 471-Right Eye and 467-Left Eye.  Corneal Topography and Tomography of both eyes of complainant was done on January 15^th, 2015.  On January 16^th, 2015, the complainant was also examined by Dr. Sujata Dwivedi, Cornea and Refractive Surgeon, Chandigarh. She diagnosed complainant as a case of post lasik ectasia (irregular surface and bulging of cornea).    Dr. Sujata Dwivedi filed her affidavit (Exhibit OP-30) in support of the case of Dr. Kapil Vohra stating therein that she examined the complainant alongwith copies of all previous coloured topography, tomography and pachymetry reports of both eyes (Exhibits OP-11 and OP-12).  The complainant was diagnosed as a case of Post Lasik Ectasia as per report dated January 16^th, 2014 (Exhibit OP-30).  She further stated that the complainant was advised to undergo C3R (Corneal Collagen Cross Linking assisted with Riboflavin).  It was also stated by her that Post Lasik Ectasia may occur even in careful pre-operative assessment of the previously healthy and unsuspected corneas. She also verified that there was no medical negligence on the part of Dr. Kapil Vohra. For better management and second opinion, the complainant was advised to consult Dr. Ambarish B. Darak.  The complainant was treated by Dr. Ambarish B. Darak.  

10.    Dr. Ambarish B. Darak also filed his affidavit (Exhibit OP-32) stating that there was no medical negligence on the part of Dr. Kapil Vohra.  He also confirmed that Post Lasik Laser is a rare and known complication of lasik.  It may occur in cornea which are otherwise normal and without any pre procedural sign of weakness.  In past treatment options were limited, however, corneal collagen cross linking (CXL) retards, aborts and in many cases reverses the ectasia process in eyes. 

11.    As regards the credentials of Dr. Ambarish B. Darak, this Commission has taken print out from the internet that he is one of the leading and successful refractive surgeons of India.  With over 60,000 laser surgeries till date, his feat is unmatched in the field.  Having imparted training in refractive surgeries to over 48 Ophthalmic Surgeons across the country, he has been a leading consultant for over decades now. 

12.    In a case of medical negligence, what is expected of a doctor is ordinary skill, care and expertise and not an extraordinary or super human skill, judgment or expertise.  Simply, because a mishap had occurred, neither the hospital nor the doctors can be made liable.  A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.  A doctor or a hospital is expected to take reasonable care in administration of the treatment.  What is the duty of a doctor is to take care and caution while giving the treatment as per the established medical practice.  If he has acted in the said manner, no question of deficiency would arise.

13.    In Jacob Mathew v. State of Punjab And Anr., III (2005) CPJ 9 (SC), Hon’ble Supreme Court held as under:-

          “18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.”

14.    In Bolam v. Friern Hospital Management Committee, (1957) I WLR 582=(1957) 2 All.ER 118 (Queen’s Bench Division - Lord Justice McNair observed.

“(i)     a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48).

Lord Justice McNair also observed : Before I turn that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case, it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus, because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

15.    In cases of medical negligence, opinion of Medical Board carries value.  In this case, the Medical Board consisting of Dr. Sunanda Jindal, Senior Medical Officer and Dr. Rajesh Gupta, Medical Officer, Civil Hospital, Ambala City vide their vide report (Exhibit OP-21) opined that there was no medical negligence on the part of Dr. Kapil Vohra in conducting lasik laser procedure. On the basis of their report, Chief Medical Officer recommended to file the complaint vide Exhibit OP-22.  Dr. Sujata Dwivedi, Cornea and Refractive Surgeon, Chandigarh and Dr. Ambarish B. Darak, who treated the complainant also stated that there was no medical negligence on the part of Dr. Kapil Vohra.  With this overwhelming evidence on record, it is established that whatever best could be done by Dr. Kapil Vohra, was done by him from the very beginning in the present case by exercising his skill with reasonable competence and there was no medical negligence on his part.  Hence, the complaint is dismissed being devoid of merits.

 

 

Announced: 20.07.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

UK